Judge Andrews Adopts Special Master’s Ruling on Motions to Strike
July 12, 2016
Publication| Intellectual Property
In Callwave Communications LLC v. AT&T Mobility, LLC, et al., C.A. No. 12-1701-RGA (D. Del. June 16, 2016), Judge Andrews adopted Special Master Yvonne Saville’s Report and Recommendation denying the parties’ cross-motions to strike the testimony of each other’s experts. The plaintiff moved to strike the defendants’ invalidity expert from testifying regarding a theory first disclosed in the reply expert report. Likewise, the defendants moved to strike the plaintiff’s infringement expert regarding a theory first disclosed in the reply expert report. Judge Andrews began the opinion by finding that, as opposed to a procedural issue that would be reviewed for an abuse of discretion, this issue was nonprocedural because it involved the exclusion of evidence at trial; thus, the special master’s ruling would be reviewed de novo. Judge Andrews then considered the plaintiff’s objections to the special master’s ruling, noting that the objections primarily discussed a “pattern of behavior” by the defendants and an “incurable prejudice” if the expert testimony was permitted.
First, Judge Andrews found that the record did not indicate any pattern of bad faith or willfulness by the defendants in raising a new theory in the reply expert report. Rather, Judge Andrews found that the introduction of this new theory simply followed a pattern whereby each allegation of misconduct by one side was met with another allegation of misconduct by the other side. Second, Judge Andrews found that no prejudice existed that could not be cured by depositions of both experts. Finally, Judge Andrews found that any delay of the trial due to these new expert theories would be solely “attributable to the actions of both sides.”
Analysis: This opinion highlights a general unwillingness to exclude evidence from trial when any prejudice can be cured.